ANALYSIS: Just before 7pm on July 9th 2010 Anthony Frederick, a grandfather with no criminal convictions, was chatting to his neighbour in his own driveway, writes Sasha Barton, a solicitor at Hodge Jones & Allen LLP specialising in public law and human rights. A group of approximately seven police officers approached him. They told him that they had authority to search him for weapons under the Criminal Justice and Public Order Act 1994, section 60. Frederick objected politely but firmly. They, increasingly less politely and much more firmly, insisted on a search.

Sasha Barton

In Fredrick’s case officers secured their section 60 authorisation – see below – following a violent incident in the area involving youths with weapons. The authorisation allowed them to search anyone in the vicinity to see if they were carrying weapons. The focus of the search was clearly meant to be on local youths.

Fredrick was 49 years old, and, it’s worth repeating, had no previous criminal convictions.  He was not a youth, nor was he behaving suspiciously. He was standing in his own driveway. Despite this the officers insisted that they had the right to search him. He pointed out that he was on his own property. He offered them his front door keys so that they could check for themselves – it did.

For some 15 minutes – presumably whilst youths with weapons roamed nearby streets – the police officers continued to insist that they would search Fredrick. He in turn continued politely but firmly to query the lawfulness of the search. He was not rude or aggressive but refused to be searched. Eventually, the officers told him that if he wouldn’t consent to be searched, he would be searched by force.

‘Section 60’ search
The section 60 search was introduced to keep order at football matches, extended in the wake of concerns about rising gun crime to give the police wide powers to search for weapons. Most ‘stop and search’ powers rely on the police having both objective grounds and subjective suspicion that an individual person may be carrying drugs, weapons or something that has or could be used to commit an offence. Section 60 is a blanket power. Firstly, a senior officer must authorise its use.  Officers applying to a senior police officer must set out a defined area, and explain why they think that a serious violent incident has taken – or possibly might take – place, or that people are carrying weapons in that area.  The senior officer can sign the power off for 24 hours. It can be extended for a further 24 hours. Once authority is given, officers can search any pedestrian in that defined area. There is no need for officers to justify searches on a case by case basis. It means that anyone who just happens to be in the area at the time can lawfully be searched by officers without justification. Unlike other stop and search powers, which are limited to places accessible by the public, section 60 is not obviously limited in this way.

Unnecessary and humilating
Fredrick was grabbed by approximately five officers and forced to the ground, seriously injuring his thigh and hurting his arm and hand. At the time he was in agony, and on being lifted to his feet was barely able to walk. Officers searched Frederick but found nothing. He felt deeply embarrassed, being mistreated in this way in front of his neighbours and a crowd of onlookers. His other neighbour, who was standing nearby and who also refused to be searched, was left alone.

He was arrested for obstructing a police constable, handcuffed and driven to a police station.  At the station, officers sought authority to strip search him. Authority for strip searches must be given by a custody sergeant. This was denied by the sergeant but, incredibly, after the shift changed and a new custody sergeant came on duty (the first unfortunately not having noted the refusal), the officers tried again to have him strip searched. In the meantime, the officers had prepared their notes together (and Fredrick’s injury had been recorded by the police doctor).

The new custody sergeant was told by the officers that Fredrick had ‘previous’ for possession of drugs. This was not true, however, based on this, authority to strip search him was granted. He was made to remove his clothes and further humiliated and demeaned by the officers.  Needless to say, nothing was found. Fredrick later reported that he felt that the police officers, knowing that they had caused him injury, were trying to find something on him which would incriminate him in some way and thus making it harder for him to complain.

After that Frederick was interviewed. He answered all the interviewing officers’ questions and complained that he did not think officers had lawful powers to search him.  He was told by officers that they, and not he, were right, and if he had complied with them from the outset, it never would have turned out as it had.

He was charged with the offence of obstruction. Frederick complained without success about the officers. The local complaints branch of the police considered his complaint and found that officers had done nothing wrong.

Draconian
Frederick pleaded ‘not guilty’ in the Magistrates’ court. However, the Magistrates’ found that officers had power under s60 to search him and that he had obstructed the search. Despite this, they clearly felt sympathetic towards him, sentencing him to an absolute discharge (a nominal penalty).

Frederick was unhappy and appealed. His appeal was finally heard in Snaresbrook Crown Court last June. This time the court considered the section 60 power in a bit more detail. The judge held that whilest it gave a broad power to search, the power was not quite as broad as officers claimed. In particular he found that a man standing stationary on his own property could not legitimately be described as a ‘pedestrian’ within the meaning of the Act. As such, officers did not have power to search him and he had done nothing wrong in refusing to be searched. It was the officers, not Mr Fredrick, who were wrong.

Following the decision of the Crown Court, Mr Fredrick sought advice from my firm Hodge, Jones and Allen LLP. With our help, he sued the police for assault, false imprisonment and misfeasance in public office (relating to the strip search). The claim was successfully settled out of court for £11,750, but significantly, while he was awarded compensation, the fact his complaint about the officers was not upheld means that the officers involved will not face any repercussions individually.

His case raises important issues about the draconian and blanket nature of certain stop and search powers and the alienating impact these can have on individuals and communities. The police have a raft of ‘stop and search’ powers at their disposal.

The law generally requires that officers have at least some grounds for a search, though many of my clients who in this type of claim are overwhelmingly young black men report that the police stop and search people for drugs and weapons with impunity. There is a very low evidential test for officers to satisfy for a search to be lawful with many stop and searches apparently being justified retrospectively, officers clutching at the thinnest of evidence.

But at least officers have to give some thought on a case by case basis as to the reasons behind the search.

The breadth of section 60 leaves real scope for abuse.

It is clearly important that officers have powers enabling them effectively to police crowd situations, stopping violent situations escalating and identifying weapons. And the powers do have some safeguards – only an officer of inspector level of above can give authorisation.

But there is the risk that, once authorisation is made, officers will give no thought to who they search or the rationale for doing so, searching people who the authorisation was never meant to target and impinging on their right lawfully to go about their day to business without interference. This appears to have been the case with Frederick – a middle aged gentlemen who just happened to live in an area where there had been a violent incident involving youths, minding his business outside his own home.  Officers appear simply to have blindly acted under the authorisation, without considering whether it was really within the scope of the powers to search him, and then, having caused him injury, appear to have done what they could to get themselves out of trouble.  Thankfully the Crown Court saw sense.

Another major risk is that officers, free to search anyone in a given area without justification, may disproportionately search ethnic minorities. Where officers are taking targeted action to tackle a specific, immediate issue based on evidence then this could be justified, but there is a risk of a more generalised disproportionate searching of ethnic minorities. My concern is that in situations more generally, such as in Frederick’s case – my client is Black british – it is the black men who will be singled out and searched. This concern is not just hypothetical. Research published this week by the Equality and Human Rights Commission shows that, of the 24 forces in England who provided data, ethnic minority people made up 64% of all those stopped in 2010-2011 under Section 60, up from 51% two years earlier.

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Interview: ‘I had no rights whatsoever…’

‘I was extremely angry. I was on my private property, forcibly searched even though I’d given reasons for not being searched. As a member of the public, I had no rights whatsoever. Whether you have something to hide or not, you are treated as a criminal. I have totally lost my faith in the police.’
Anthony Frederick talking to Jon Robins

What happened immediately before the search? ‘I’d been working on my car on my drive. My neighbours came out because it was such a hot day and we were talking,’  recounts Anthony Frederick, a 51-year old grandfather and carer from Leytonstone; adding that he was aware that the police were investigating a stabbing and a retaliatory shooting which began on a nearby estate. ‘I finished on the car and was packing my tools away, when a police van came down the road. It was driving really slowly. The officers jumped out of the vehicle and said that they were going to do a stop and search. I refused. My neighbour who was standing next to me is Asian. He also refused to be searched.’

‘I was searched from head to toe by two officers,’ he says; adding that he damaged his hamstring as he was forced to the ground. ‘They met in the middle of my torso. They then arrested me and took me to the police station. There were about seven officers in the van, two female observers in high viz jackets and a police inspector.’

Is there a lot of police activity in the areas? ‘Two of my neighbours who were searched with me were stopped and searched the following week by different officers from a different police station. There have been a lot of issues in the area with youth crime, mugging, and carjacking. But I am 51 years old. I have never had a criminal record. I do not walk around in gangs.’

What does he think of ‘stop and search’? ‘I see more searches of black youths than any others. I do resent the attitude of the police and the way they behave towards certain individuals. There are quite a few officers who talk to you and treat you as though you are worthless or who treat you like you’re a criminal when you haven’t done anything at all.’